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EGMR, Urteil vom 23.06.2011 - 20493/07, Diallo gg. Tschechische Republik (engl.) - M18678

Verurteilung der Tschechischen Republik wegen einer Verletzung von Art. 13 i.V.m. Art. 3 EMRK.

1. Das tschechische Asylverfahren hat den Beschwerdeführern keinen effektiven Rechtsschutz im Sinne von Art. 13 EMRK gewährt. Auch während des verwaltungsrechtlichen Abschiebungsverfahrens haben die Behörden das Vorbringen einer drohenden Verletzung von Art. 3 EMRK nicht inhaltlich geprüft, da im Dublin-Verfahren eine Überstellung in den sicheren Drittstaat Portugal vorgesehen war. Abgeschoben wurde der Beschwerdeführer jedoch unangekündigt nach Guinea.

2. Ein Rechtsschutzbedürfnis liegt vor, da der Prozessbevollmächtigte den Kontakt zu dem Beschwerdeführer nur aufgrund der unangekündigten Abschiebung nach Guinea verloren hat. Die zuvor unterzeichnete allgemeine Vollmacht genügt daher. Es wäre künstlich und spekulativ, anzunehmen, dass der Beschwerdeführer seinen Antrag nicht weiterverfolgen wollte.

Schlagwörter: Asylverfahren, Tschechische Republik, Dublin II-VO, Dublinverfahren, Guinea, effektiver Rechtsschutz, Prozessvollmacht, Rechtsschutzinteresse, Abschiebung, Suspensiveffekt, Portugal, sichere Drittstaaten
Normen: EMRK Art. 13, EMRK Art. 3, EMRK Art. 37 Abs. 1, EMRK Art. 35 Abs. 3, EMRK Art. 35 Abs. 4, EMRK Art. 35 Abs. 1, EMRK Art. 34



38. The applicants complained that they had no effective remedy for their arguable claim under Article 3 of the Convention that they would be ill-treated if returned to Guinea. They relied on Article 13 of the Convention, which reads as follows:

"Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity."

39. The Government disputed the applicants' assertions.

A. Admissibility

1.Incompatibility ratione personae and motion to strike out the application regarding the second applicant

40. The Government objected that the second applicant had not submitted a power of attorney for the representative that had lodged the present application on his behalf which, consequently, had to be declared inadmissible as incompatible ratione personae. Alternatively, they maintained that since the applicant had not contacted his counsel at any time after his expulsion, he must be deemed to have lost interest in pursuing his application, which thus had to be struck out of the list of cases under Article 37 § 1 (a) or (c) of the Convention.

41. The second applicant's counsel maintained that he had only lost contact with his client due to his unlawful expulsion to Guinea, of which he had at no point been informed, having learned of it only later from another person who had been detained with the second applicant. He admitted that despite his continuous attempts he had so far not been able to re-establish contact with the second applicant, but that this was most probably due to the fact that he was in hiding. According to information provided by the first applicant, who is, however, not in direct contact with the second applicant either, the latter is currently somewhere in Sierra Leone. Nevertheless, the representative argued that he had submitted a general power of attorney duly signed by the second applicant which, in the circumstances of the present case, should be deemed sufficient.

42. With reference to Rules 36 and 45 of the Rules of Court, the Court observes that the application form was signed by the second applicant's lawyer. The form was accompanied by a power of attorney signed by the second applicant, authorising his lawyer to act on his behalf and to represent him before any court in relation with his expulsion from the Czech Republic, including preventing the expulsion, and to make any claims arising from the situation. It notes that this power of attorney was not withdrawn (see, a contrario, K.M. and Others v. Russia (dec.), no. 46086/07, 29 April 2010).

43. In these circumstances the Court considers that the applicant has sufficiently demonstrated that he wished Mr J. V?trovský to make an application to the Court on his behalf (see Ivan Kuzmin v. Russia, no. 30271/03, § 49, 25 November 2010). Accordingly, it holds that the application cannot be rejected as incompatible ratione personae pursuant to Article 35 §§ 3 and 4 of the Convention and dismisses the Government's objection. [...]

B. Merits [...]

2. The Court's assessment

74. The Court reiterates that in the circumstances of extradition or expulsion and a claim in conjunction with Article 3 of the Convention, given the irreversible nature of the harm which might occur if the alleged risk of torture or ill-treatment materialised, and the importance which the Court attaches to Article 3, the notion of an effective remedy under Article 13 requires (i) close and rigorous scrutiny of a claim that there exist substantial grounds for believing that there was a real risk of treatment contrary to Article 3 in the event of the applicant's expulsion to the country of destination, and (ii) a remedy with automatic suspensive effect (see M.S.S. v. Belgium and Greece [GC], no. 30696/09, § 387, 21 January 2011; Baysakov and Others v. Ukraine, no. 54131/08, § 71, 18 February 2010; and Gebremedhin [Gaberamadhien] v. France, no. 25389/05, § 66, ECHR 2007-V).

75. Turning to the present case, the Court notes that the applicants were parties to two sets of proceedings in which their claim that there was a real risk of ill-treatment in their country of origin could have been examined, namely, the asylum proceedings and the administrative expulsion proceedings.

76. Regarding the asylum proceedings, the Court notes that their asylum applications were rejected by the Ministry of the Interior without a consideration on the merits, on the ground that they had arrived from Portugal, which was considered a safe third country. In this context the applicants argued that under the European Union Dublin Regulation it was the Czech Republic and not Portugal which should have examined their asylum request. It is, however, not the Court's task to interpret European Union law or domestic law; it suffices to note that the applicants were not eventually expelled to Portugal but to their country of origin.

77. The Court observes that the applicants' claims that there was a real risk of ill-treatment in their country of origin were not subjected to close and rigorous scrutiny by the Ministry of the Interior as required by the Convention, or in fact to any scrutiny at all. At the same time, their requests for judicial review did not have an automatic suspensive effect because their asylum requests had been considered manifestly unjustified. A constitutional appeal would not have had an automatic suspensive effect either.

78. Given the lack of automatic suspensive effect as required by Article 13 of the Convention, the first applicant cannot be faulted for not having properly exhausted the judicial review proceedings as suggested by the Government (see M.S.S. v. Belgium and Greece [GC], cited above, § 396).

79. Regarding the second applicant, the Court notes that unlike the first applicant the domestic court had reviewed his request for judicial review before he was expelled. However, not even the Regional Court subjected his arguable claim under Article 3 of the Convention to careful scrutiny but only confirmed the decision of the Ministry that his claim was manifestly unjustified because Portugal was a safe third country.

80. In these circumstances, the Court considers that the asylum proceedings did not provide the applicants with an effective domestic remedy within the meaning of Article 13 of the Convention.

81. Regarding the administrative expulsion proceedings, the Court similarly notes that none of the authorities examined the merits of the applicants' arguable claim under Article 3 of the Convention. In particular, the conclusions of the compulsory opinions of the Ministry of the Interior that there were no hindrances to the applicants' expulsion were explicitly based on the assumption that the applicants were liable to be expelled to Portugal only.

82. The Court observes that a judicial review of the administrative decisions in these proceedings was explicitly ruled out by a provision of the Aliens Act valid at that time. Yet, the Government argued that the applicants should have, nevertheless, challenged that domestic provision before the Constitutional Court.

83. The Court notes, however, that in the content of such proceedings the Constitutional Court would not have reviewed the merits of the applicants' arguable claims under Article 3 of the Convention but would have dealt only with the question of conformity of the particular provision of the Aliens Act with the Constitution. Moreover, such proceedings would not have had an automatic suspensive effect on the applicants' expulsion, and they would have been liable to deportation at any time. Consequently, the Court does not consider that lodging a request for judicial review of the decision on administrative expulsion and a subsequent constitutional appeal would have been an effective remedy in the present case.

84. Regarding the possibility of a direct constitutional appeal claiming a violation of Article 3 of the Convention as suggested by the Government, the Court likewise notes that it would not have an automatic suspensive effect and thus does not satisfy the requirements of Article 13 of the Convention in the present context.

85. Accordingly, none of the domestic authorities examined the merits of the applicants' arguable claim under Article 3 of the Convention and there were no remedies with automatic suspensive effect available to the applicants regarding the authorities' decision not to grant them asylum and to expel them. In view of the foregoing, the Court finds that there has been a violation of Article 13 of the Convention taken in conjunction with Article 3 of the Convention.


86. The applicants further complained that by deporting them without prior notice the State had denied them an effective right of individual application to the Court in that they could not request an interim measure. They relied on Article 34 of the Convention, which reads:

"The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right."

87. The Court firstly observes that in the present case the applicants complained that their rights under Article 13 in conjunction with Article 3 of the Convention were violated. They did not allege a violation of Article 3 of the Convention itself, in which case it might have been appropriate to request an interim measure. Consequently, the fact that they could not ask for an interim measure to stay their expulsion under Article 3 of the Convention does not raise an issue in the present case.

88. Regarding their claim under Article 13 of the Convention, the Court does not consider that the applicants' expulsion has any bearing on it. The subject matter of that complaint is the lack of an effective domestic remedy regarding expulsion and not the expulsion itself. They were able to duly submit this complaint to the Court, as evidenced by the present application.

89. Consequently, the respondent State has not failed to comply with its obligations under the last sentence of Article 34 of the Convention. [...]